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Since this is National Estate Planning Awareness Week, there is no better time, than to share with you, why having your Estate Plan in place is critical. Estate planning is important because it allows you to implement a plan to take control of your affairs and protect your assets now and in the future. For example, proper planning ensures your hard-earned assets will go to the people you want, when you want, in the manner you want after you pass away. Sometimes, people do estate planning to make sure that a particular person, such as a spouse or a child, is protected. Someone may also implement Estate Planning to make sure that they have enough assets to live on for the rest of their life. In addition, creating a comprehensive Estate Plan, can also ensure that people you trust have the authority to make financial and medical decisions on your behalf in the event of incapacity.

 

Depending on your particular needs and goals, estate planning can help you accomplish a great deal more, including:

 

  • Protect your assets against lawsuits, creditors, the high cost of long-term care, and other threats
  • Nominating guardians to ensure that your minor children taken care of, in the event you passed away.
  • Reduce income, estate, gift, and other taxes
  • Keep your financial affairs and family information private
  • Protect the inheritances of your heirs
  • Leave an enduring legacy

 

Ultimately, estate planning gives you the peace of mind that comes from knowing you have a plan in place for whatever the future may hold.

 

In honor of National Estate Planning Awareness Week, we have discounted our meeting fee throughout the month of October. You can meet with us in-person at our office or virtually via Zoom and other platforms.  We look forward to working with you.

special needs benefitsWhen planning for an individual with special needs, consideration must be given to the individual’s independence and quality of life.

Special needs benefits can be in the form of assistance provided by government programs, such as Medicaid, SSI, SSDI, and Medicare. In addition, there are many community organizations that devote themselves and their funds to the needs of one or more special needs. These benefits play an important role in meeting the individual with special needs’ objectives.

The Government has responded to the growing special needs population by implementing laws such as the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. In addition, the Omnibus Reconciliation Act of 1993 (OBRA 93) was enacted, which in part expanded the program for the benefit of those with special needs (primarily for those under the age of 65) by the creation of exempt transfers and exempt trusts in connection with Medicaid and SSI eligibility.

Important Programs to Know About

  • Supplemental Security Income (SSI), Social Security Disability Income (SSDI), and Medicaid are three important Government Benefit Programs that provide funds for medical care and services for individuals with special needs.
  • The NYS Office for People with Developmental Disabilities (OPWDD) is the governmental agency that oversees services provided to individuals with special needs, including services under Medicaid waiver programs.
  • The Individuals with Disabilities Education Improvement Act (IDEA) provides funding to assist states and local communities in providing educational opportunities and services to students with disabilities.
  • There is also the Early Intervention Program in New York State which is designed to meet the needs of children with disabilities from birth to age three.

Supplemental Security Income (SSI)

Supplemental Security Income (SSI) is a government benefit program, administered by the Social Security Administration, which can provide a monthly payment amount for an individual once they are eligible. This monthly payment often assists the individual in meeting their basic needs for food, clothing, and shelter. It should be noted that SSI has strict eligibility rules.

Social Security Disability Income (SSDI)

Social Security Disability Income (SSDI) pays benefits to individuals who are unable to work because of their disability. The individual’s disability must fall within the Social Security Administration’s definition of a disability. Unlike SSI, generally, you must have paid Social Security payroll taxes to collect SSDI benefits. An individual’s eligibility and benefit amount will depend upon the age and number of accumulated work credits. After two years of receiving SSDI benefits, the beneficiary automatically becomes eligible to receive Medicare, even if they are under age 65. In certain circumstances, other family members may also qualify for disability benefits.

Medicaid

Medicaid is a federal and state program that assists eligible individuals with medical and health-related costs and services. Medicaid covers a wide variety of services including but not limited to: assistance with medical costs, waivered programs dedicated to individuals with disabilities, home health care. Like SSI, Medicaid has strict eligibility rules. However, in New York, an individual who is eligible for SSI, is automatically eligible for Medicaid.

Office for People with Developmental Disabilities (OPWDD)

The New York State Office for People with Developmental Disabilities (OPWDD) coordinates services for individuals in New York with developmental disabilities, including intellectual disabilities, cerebral palsy, down syndrome, autism spectrum disorders, and other neurological impairments. OPWDD supports and services are primarily provided in community settings across the state. The supports and services include Medicaid funded long-term care services such as habilitation and clinical services, as well as residential supports and services. There are also supports for Independent and Family Living which includes a wide range of services that allow an individual to remain in their own home. OPWDD also provides a variety of day programs, which are accessible to individuals with disabilities. Each program is focused on giving participants the personal, social, and vocational supports needed to live in their community and varies depending on each individual’s needs and interests.

IDEA

Another important aspect of accessing government benefits is the education that every child is entitled to under the law. IDEA is a law whose primary purpose is to improve educational outcomes for children and youth with disabilities. IDEA provides funding to assist states and local communities in providing educational opportunities and services to students with disabilities.

Early Intervention Program

The Early Intervention Program in New York State is designed to meet the needs of children with disabilities from birth to age three. The program is designed to offer support services for developmental delays in addition to other disabilities. This program is not means-tested and there is no parental liability for any services provided. Where available, health insurance and/or Medicaid will help fund the services provided.

The information provided above is some examples of benefits that may be accessed by an individual with special needs. When an individual with special needs is able to access a benefit, it can often be very supportive of them.

If you have any questions regarding special needs benefits or planning, please contact us and one of our experienced attorneys will be glad to assist you.

funding your trustFunding your Trust is critical to having a successful outcome to your estate plan.

Goals of a Trust

When an individual implements their estate plan, they usually have one or more goals they are looking to accomplish. For example, a common goal for establishing a Revocable Trust is to avoiding probate. This can be for a variety of reasons, including owning property in multiple states or concerns that someone may challenge (contest) your estate plan.  Some reasons for establishing an Irrevocable Trust may include Medicaid asset protection, estate tax planning, and avoiding probate.

Avoiding Probate

Avoiding probate may be accomplished by holding assets in a Trust, having a beneficiary designation on the asset, or holding title to the asset jointly. Absent joint ownership or a beneficiary designation, it is important to highlight that an unfunded or partially funded revocable living trust does not avoid probate. It is also important to emphasize that an unfunded irrevocable trust living trust will result in certain assets not being protected for Medicaid eligibility purposes or may even result in not accomplishing your estate tax planning results.

Testamentary Desires

In addition to the reasons set forth above, making sure your Trust is funded, allows for your testamentary desires to be realized upon your passing. The body of your Trust stipulates how you want your assets to pass upon your death. Your Trust will, oftentimes, stipulate the flow of assets for multiple generations.  If your Trust is not properly funded, then your testamentary desires may not be adhered to upon your passing.

In general, you can accomplish the funding of your Trust by making an ownership change to the title of most of the assets from your name individually to your Trust or for certain assets you may designate the Trust as the beneficiary of the asset(s).

If your Trust is not properly funded, it will have a significant impact on the effectiveness of your plan. We recommend that you review your estate plan with your attorney periodically to make sure you have completed the necessary steps to accomplish your estate planning goals before it is too late.

The COVID-19 Pandemic has forced many of us to confront a scenario in which we are wondering what would happen if we suddenly became critically ill or, in some instances, unexpectedly and suddenly passed away. These scenarios may trigger a person to ask the question: “Did I properly implement an estate plan, and if I have already implemented an estate plan, was it recently reviewed to make sure it meets all of my estate planning goals?” As a result of the global health crisis, it is critical for you to be prepared in order to protect yourself and your family.

Unfortunately, COVID-19 has caused many people to become very ill, including situations where the individual is unable to communicate his or her own health care and financial decisions. A crucial component of all estate plans is that an individual has his or her advance directives in place. Advance directives are documents that are executed in advance of a crisis and that allow a person to designate an individual or individuals to make health care and financial decision on their behalf, in the event it is needed.

Advance Directives

All adult individuals should have the following documents in case they are unable to manage their affairs:

  1. A Durable Power of Attorney for financial decision making and asset management.
  2. A Health Care Proxy for health care decisions in a hospital.
  3. An Authorization for Release of Protected Medical Information (HIPAA) so people you trust can access your medical records for you.
  4. A Living Will giving instructions regarding end of life medical decisions.

Last Will and Testament

Amidst this Pandemic, we also have unfortunately witnessed a significant number of tragic deaths. As part implementing a comprehensive Estate Plan, an individual should have a Last Will and Testament, and in some cases, a Last Will and Testament and a Living Trust.

A Last Will and Testament is a legal document that allows you to control who will inherit your assets upon your death and to appoint someone who you trust to serve as your Executor. Your Executor will administer and distribute your probate estate in accordance with your wishes as stated in your Last Will and Testament. By executing a valid Will, you can control (i) who inherits in your assets, by documenting your wishes, (ii) who manages your estate, by designating someone you trust as your Executor; and (iii) you can make sure to provide for loved ones in a protective way.

After your passing, your Executor will be required to probate your Last Will and Testament if you have a probate estate. Probate is the legal process of submitting the Last Will and Testament to the Surrogate’s Court for approval. The Last Will and Testament will only govern assets that were solely owned in the decedent’s name at the time of death and which have no designated beneficiaries. Assets that the decedent owned at death that has a right of survivorship, beneficiary designation, or are held in trust, will pass by operation of law outside of the Last Will and Testament.

Revocable Living Trust

Many individuals choose to establish a Living Trust when one of their estate planning goals is to avoid probate. One of the most important benefits of avoiding probate is that your assets will pass upon your death to your beneficiaries without the delay and costs involved with a probate proceeding in the Surrogate’s Court. This is important because it allows a decedent’s beneficiaries to gain immediate access to assets for the payment of the decedent’s funeral and other expenses. Similar to a Last Will and Testament, a Living Trust will allow you to control who inherits your assets by documenting your wishes, who manages your estate by designating someone as your Trustee and assurances that you can make sure to provide for loved ones in a protective way. You should also have a Pour-Over Will in case you do not fully fund the Revocable Living Trust (as a safety net) which pours to the Trust any assets outside of the Trust which does not have a beneficiary designation.

The COVID-19 Pandemic is a solemn reminder to all of us that life is unpredictable and that we must be prepared. By implementing a comprehensive estate plan, you will have peace of mind knowing that you have put a plan in place to ensure that you and your loved ones are provided for in the ways that you desire.

It is important when implementing estate planning to consult with and retain experienced attorneys. Russo Law Group, P.C., has experienced, knowledgeable and compassionate attorneys who can provide professional services and advise you. Please contact us if you would like us to assist you.

During this unprecedented time, we often find ourselves looking for ways to adapt and function to continue on with the tasks that still present themselves. In response to the continued need to have important legal documents notarized and witnessed, New York State Governor Andrew M. Cuomo recently issued Executive Orders 202.7 and 202.14 authorizing the use of remote notarization and witnessing execution of legal documents by audio-video technology.

This extraordinary action taken by Gov. Cuomo ensures that New Yorkers can continue to conduct essential business matters while remaining safely quarantined in their homes during the PAUSE put in place as a result of the COVID-19 pandemic.

For many New Yorkers, these Executive Orders will allow them to execute important estate planning documents, like a Durable Power of Attorney, Advanced Health Care directives, Last Wills and Testament, and Trust agreement, which will ensure that their financial, health care, and estate planning wishes can be honored in the event something should happen to them.

REMOTE NOTARIZATION

To validly notarize a document under Executive Order 202.7, the following rules must be adhered to:

Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

1. The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;

2. The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);

3. The person must affirmatively represent that he or she is physically situated in the State of New York;

4. The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;

5. The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and

6. The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

REMOTE WITNESSING

The authorized act of remote witnessing granted in Executive Order 202.14 is only extended to documents authorized by specific New York State laws referenced in the Executive Order. Therefore, it is important for you to carefully review the provisions of the Executive Order prior to relying upon the act of remote witnessing.

The act of witnessing that is required under the aforementioned New York State laws is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

1. The person requesting that their signature be witnessed, if not personally known to the witness(es), must present a valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;

2. The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);

3. The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;

4. The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and

5. The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

It should be noted that Executive Order 202.7 (Remote Notarization), is effective March 19, 2020 through May 7, 2020, and Executive Order 202.14 (Remote Witnessing) is effective April 7, 2020 through May 7, 2020. Executive Order 202.18, extends Remote Notarization (Executive Order 202.7) and Remote Witnessing (Executive Order 202.14) through May 15, 2020.

As you navigate through these uncertain times, Russo Law Group remains available to be a resource to you. Please visit us on our website www.vjrussolaw.com or contact us at (516) 683-1717.

Frequently Asked Question #2:

 Medicaid: What is the 5 year look back and how does the penalty period get calculated?

It is not uncommon for me to canvas a group of people and find out that the majority of the group has heard of the 5 year look back when it comes to applying for Medicaid in a nursing home. I, however, regularly receive follow up questions regarding the details of how the 5 year look back and penalty period works.

 

The 5 Year Look Back

 The look-back period for all transfers made is 60 months (5 years) for New York State nursing home Medicaid applications filed. This means that when an individual applies for Medicaid coverage in a nursing home, the local Medicaid agency will review the applicant’s transfer history for both real estate and finances to see if any uncompensated, non-exempt transfers (gifts) were made within the 5 year look back. If the agency determines that there were such transfers within the 5 year look back, a penalty will be assessed and the applicant will be ineligible for Medicaid for a period a time and therefore will have to pay privately for the nursing home care provided during that period of ineligibility. This can be very costly given the cost of care in a nursing home. For example: If the nursing home costs $15,000 per month and the applicant is penalized for 5 months, this will result in the applicant having to pay $75,000 to the nursing home before the applicant’s care is covered by Medicaid.

 

The Calculation of the Penalty Period

If the local Medicaid agency determines that there was gift within the 5 year look back subject to a penalty, the agency will determine the length of time the applicant is penalized by dividing the value of the transfer by a regional rate determined by Medicaid (in essence, that average monthly cost of a nursing home in that region) for the County that the applicant is applying in. For example, if a Nassau County applicant made a gift within the 5 year look back in the amount of $130,000, Medicaid would assess the penalty period as follows:

$130,000 (value of the transfer)/$13,053 (the regional rate for Nassau County for 2018) = 9.95 months (the amount of time the applicant is ineligible for Medicaid).

In the example above, the penalty period is almost 10 months. This will result in a significant private pay bill to the nursing home.

It is very important to anticipate and plan for a situation such as this when applying for Medicaid nursing home care and to consult with an experienced elder law attorney.

 

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

Frequently Asked Question #1:

What is the difference between a First Party Special Needs Trust and Third Party Special Needs Trust?

Several factors should be considered when determining whether a First Party Special Needs Trust or a  Third Party Special Needs Trust should be utilized when developing the appropriate plan for a beneficiary with special needs. In both circumstances, the type of government programs the individual is receiving should be considered, as well the age of the beneficiary and the needs of the beneficiary. In addition, one of the key factors in determining what kind of Trust to use is whether the assets that are going to be used to fund the Trust are those of beneficiary or those of a third party.

 

First Party Special Needs Trust

A First Party Special Needs Trust is Trust that is established for the benefit of an individual with special needs. The Trust is funded with the assets of the beneficiary. This type of Trust is exempt for Medicaid eligibility purposes and the funding will not affect the Medicaid eligibility of the beneficiary.

There is a statutory requirement that the disabled beneficiary be under the age of sixty-five (65) upon the creation of the trust. If a Special Needs Trust is created for an individual who is under the age of 65, that trust will remain exempt if the individual lives beyond the age of 65. However, any assets added to the trust after the individual reaches age 65 will be subject to the Medicaid transfer penalty rules.

The First Party Special Needs Trust must contain a “payback” provision. That is, upon the death of the beneficiary, any balance left in the trust must be paid back to the Department of Health in an amount not to exceed the Medicaid benefits paid on behalf of the individual.

A typical example of when a First Party Special Needs Trust is established is when someone who is receiving a needs-based government benefit (such as Medicaid) receives a money either as an inheritance that was lrft directly to him or her or from a lawsuit, such as a medical malpractice.

 

Third Party Supplemental Needs Trust

When established as a living trust, a  Third Party Supplemental Needs Trust is a good planning tool when the Trust is going to be funded with assets from someone other than the beneficiary of the Trust. For example, the assets of the beneficiary’s parents may be used to fund the Trust. In addition, if there are other people who may be inclined to make gifts or bequests to the individual with special needs, such gifts or bequests can be made directly to this trust, now or in the future, without effecting eligibility for programs such as Medicaid or SSI for the individual with special needs.

Unlike a First Party Special Needs Trust, a Third Party Supplemental Needs Trust does not require the payback provision to the state.

 A Testamentary Third Party Supplemental Needs Trust can also be established under an individual’s Last Will and Testament for the benefit of the beneficiary without adversely affecting the beneficiary’s eligibility for government programs such as SSI and Medicaid.  A testamentary trust does not get funded (receive any assets) until the person who created the Will dies.

It is very important, especially when planning for someone with special needs, to consult with an experienced special needs planning attorney so that your loved ones, and the benefits they need, are protected.

 

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

 

In New York State, in order to contest a person’s Last Will and Testament, the challenger must have the right to do so. This right is known as “standing”.

A challenger has standing under the following circumstances:

  1. When he or she has been named as a beneficiary in the will or a prior will; or
  2. When the challenger would be entitled to a share of the estate had the decedent died without a Will (called “intestacy”). Under the intestacy statute, generally, those entitled to object are the closest living heirs of the decedent.

If you are concerned that your Last Will and Testament will be challenged upon your passing, you should confer with your Estate Planning attorney to determine the appropriate plan for you.

For example, an individual who is concerned that his or her will might be challenged may choose to set up a Trust. That way, upon his or her passing there, will likely be no reason to probate the decedent’s Last Will and Testament, thus making it more difficult to challenge.

In addition, the Estate Planning attorney may include a no contest provision in your Last Will and Testament. The purpose of this clause is to deter an individual from challenging the Last Will and Testament, since the provision stipulates that if that individual challenges the Last Will and Testament and later loses the challenge, he or she will forfeit any share they may have been entitled to.

If you have questions or concerns about a challenge to your estate planning or Will, please contact us.

 

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

A homestead is defined by Medicaid as the primary residence occupied by the applicant, the applicant’s spouse, or the applicant’s minor, disabled or blind child. A homestead is exempt for purposes of Medicaid eligibility under certain circumstances. The law limits that the applicant’s net equity in the home must be valued at or below $858,000 for 2018. On its face, this means that an individual may apply for Medicaid with the title to their home still in his or her name.

Problems can arise if an exempt homestead is occupied by an individual with no spouse, minor, disabled or blind child in the household. It is possible for an exempt homestead to lose its exemption if the status of the sole occupant changes, i.e., the occupant leaves the home and is considered by the local Medicaid agency to be in a permanent absent status. By placing an individual in permanent absent status, the local Medicaid agency is presuming that the individual will not return home. A key element as to whether an individual is in permanent absent status is the intent of the individual to return home.

Additionally, if a homestead is owned solely by the Medicaid recipient, when that person passes away, the local Medicaid agency is entitled to recover (get paid back) from the estate of the recipient.

It is, therefore, good practice to meet with your estate planning attorney to determine the best strategy for protecting your home in the event you require long term health care in the future. Planning strategies may include transferring your home to a Medicaid asset protection trust or to a spouse.

Please contact us with any questions you may have regarding protecting your home or other assets from the costs of long term care.

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

What is a Pet Trust?Most pet owners think of their pet as a member of the family.  

You love your pet and want to make sure that he will be taken care of after you pass away. After reaching that decision, most people are still unsure of what arrangements need to be made.  

What is a pet trust?

A pet trust is a legal agreement to provide for the care of one or more pets in the event that the pet owner dies or becomes unable to care for them. New York State gives statutory authority for the benefit of pets under Estates, Powers, and Trusts Law, Chapter 17-B. (more…)

An individual’s estate plan should include legal documents that authorize a person of your choosing to make the necessary financial and health care decisions for you in the event you are unable to make your own decisions.

Every adult individual should have a comprehensive Durable Power of Attorney. The Durable Power of Attorney can be executed in favor of one or more individuals of your choosing, including family members (for example: spouse, children).

This will enable the person that you have designated to make financial decisions on your behalf if and when it is necessary. A comprehensive Durable Power of Attorney may also become a critical part of your plan to protect and preserve your assets. This document should contain expanded powers, such as the authority to make gifts and to sign tax returns, as well as provide for successor agent(s). In addition, this planning tool is essential in avoiding a Guardianship proceeding which can be time-consuming, costly and restrictive.

In addition, every adult individual should have health care decision making documents, including a Health Care Proxy, Living Will and Medical Authorization. A Health Care Proxy which will allow a family member or another individual of your choosing (such as your spouse or child) to make health care decisions on your behalf if you are unable to do so. Only one agent can be appointed to act at a time. It can also state your wishes regarding organ donation.

A Living Will specifies your desires as to life-sustaining treatment in the event there is no reasonable prospect of recovery. This document provides guidance to your agent named in your Health Care Proxy as to your desires regarding extraordinary life-sustaining treatment.

Lastly, a Medical Authorization allows for the disclosure or release of your health information to the individuals that you have selected to make health care decisions for you. This allows your health care agent(s) to access your health care information to make the most informed decisions about your care.

It is critical that every adult who has the ability to sign these documents do so. If you have any questions, please contact us.

 

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

Under current law, certain transfers of assets by a Medicaid applicant or recipient do not result in any transfer penalties. Any asset of any value or type can be transferred without penalty to a disabled child of any age. The law allows for transfers to the applicant’s child who is certified blind or disabled.

The production of the child’s disability award letter to the Medicaid agency can serve as proof of the child’s disability.

While producing the child’s disability award letter may be straightforward, what happens in a case where no disability determination was ever made?

According to a New York State Department of Health directive (NYS DOH GIS 08 MA/036), you may request a Medicaid disability review for the non-applying adult child. Thereafter, a disability review packet will be compiled and sent to the State Review Team for determination.

Although assets in any amount can be transferred to a disabled child of any age without affecting the Medicaid eligibility of the transferor, several other factors must be considered. The disabled child may be receiving government benefits and it should be determined whether the transfer will affect the disabled child’s eligibility for such benefits. For example, if the disabled child is receiving SSI benefits, a transfer to the child could mean the loss of the child’s SSI as well as Medicaid. Whenever a transfer of assets to anyone other than a spouse is contemplated, the gift tax consequences of the transfer must be explored as well.

If you have any questions regarding transfers to a disabled child, please contact us.

Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

It is safe to say that estate planning is generally not a prime consideration for most young adults in their 20s or 30s. The truth is that estate planning for people in this age group is just as important as it is for anyone else!

If you are unable to make your own health care decisions or financial decisions, it is important to ensure that someone trustworthy is authorized by law to make decisions on your behalf: Therefore, anyone age 18 or older should have the following documents:

A Durable Power of Attorney allows an individual that you select to make financial decisions for you, if necessary. Similarly, your Health Care Proxy will designate an individual of your choosing to make healthcare decisions for you if needed.

In addition, for individuals with young families, a Last Will and Testament is not only necessary to set forth who should inherit your assets, but it will also designate guardians for your minor children. Guardian appointments stipulate the person or people who will take care of the children, should you pass away prior to when your children reach the age of 18. It is incredibly important to have this designation in writing.

Consulting with an estate planning attorney at any age will ensure that your goals and wishes are carried out. Contact us today with questions or comments.

 

Assisted living facilities can often be an excellent option for a person who is interested in residing in a place where he or she can receive supervision or assistance with Activities of Daily Living, and where the resident is monitored to help assure his or her well being.

Traditionally, assisted living facilities were funded or paid for by the resident’s private money. In many of these instances, the use of a long-term care insurance policy is proven to be extremely helpful in paying for the cost of the assisted living facility. The payment from the long-term care insurance policy allows the individual the freedom to choose to live in an assisted living facility and privately pay for that stay.

Presently, there are only a few assisted living facilities that accept Community Medicaid. This allows the individual to reside in the assisted living facility and have the majority of his or her bill paid for by Medicaid. This may be an invaluable option for a client who does not have the funds to pay privately, does not have the long-term care insurance to defray the costs, but is not nursing-home ready and cannot stay at home.

Under this program, the applicant would apply for Community Medicaid to help reduce the cost of residing at the assisted living facility. Currently, there is no 5-year look back for Community Medicaid, thus allowing for a considerable amount of flexibility when planning for this option.

An individual’s well being and place of residence as they age is very important and personal. It is recommended to contact your attorney to find out the best option for you. Please do not hesitate to contact us with questions.

 

Businesswoman PaperworkBeing the trustee of a special needs trust is a very important role as it serves to protect the interests of a beneficiary with special needs.

Often, a special needs trust is established so that the beneficiary can have the use of funds that are left to them via an estate or funded during an individual’s lifetime. A special needs trust often preserves certain government benefits that are means-tested for the beneficiary. If the terms of the trust are violated, this could jeopardize the beneficiary’s benefits.

Responsibility #1: Understand the Benefits

An important responsibility of the trustee is to fully understand the benefits that the special needs beneficiary is receiving. For example, if the special needs beneficiary is receiving Supplemental Security Income (SSI) or Medicaid, there are certain restrictions on what is allowed to be received by the beneficiary.

Responsibility #2: Ensure Proper Distributions

By understanding the benefits, the trustee of the special needs trust can ensure that proper distributions are being made from the trust. The trustee would confirm that the distributions follow the terms and restrictions of the special needs trust. The trust will contain certain language that prohibits or allows the trustee to make certain distributions, so that government benefits may be maintained.

Responsibility #3: Follow Tax Reporting Requirements

In addition to making sure that distributions are made properly, another responsibility of the trustee of a special needs trust is to follow all tax reporting requirements. Trustees are required to file the trust income tax returns. Following these rules and guidelines are crucial because the beneficiary will be penalized should taxes not be filed properly and in a timely fashion.

Responsibility #4: Properly Invest Assets

Another responsibility of the trustee is to make sure assets are invested properly. It is the duty of the trustee to invest the trust assets in a manner that will result in the best use and growth of the trust assets. The trustee may seek to hire a qualified financial professional to make sure this is being accomplished. The trustee must also keep accurate records of any distributions made and any other transactions to or incoming/outgoing of the trust.

The duties listed above should not be taken lightly. The trustee of any trust is held to a fiduciary standard. Mismanagement of the trust may result in financial harm to the beneficiary of the trust.

We recommend that you seek professional guidance from an attorney that practices in the area of special needs planning, as well as an accountant, and a financial planner who is familiar with the rules and regulations of special needs planning.

Please contact us with questions or comments.